Aarushi (17 page)

I had sought the interview with Bhattacharya to understand the CFSL’s role a little better. From what I had seen in the trial, the integrity of the samples displayed and of the scientists testifying seemed questionable to say the least. Bhattacharya’s allusion to fish curry had to do with the collection, packing, handling and sealing of samples, and somewhat naively he said that courts throw out forensic evidence if any of these things aren’t done properly. (He had obviously not attended the Talwars’ trial.)

Then I brought up the trickier question of the relationship between the CBI and the CFSL. I gave Bhattacharya a quick wrap of his subordinate Mohapatra’s performance in court. Why would a CFSL scientist go to these lengths for the CBI? Wasn’t the CFSL supposed to be an independent body, even if its primary purpose was to assist the CBI?

Bhattacharya was a ballistics expert, far more comfortable talking about, say, subsonic handgun projectiles. He became cautious, but he also seemed concerned. He wouldn’t go into any integrity issues, but he looked out of his ninth-floor window and said there were ‘people of all types’.

‘You mean those that can be influenced . . . and those that can’t?’

‘Yes, something like that. See, ours is an extension of the CBI, we operate from the same complex. Some things are there that I personally do not like . . . it is quite common to be called by the CBI to their offices . . . Some people accept this. I find them going and reporting.’

When I asked if the CFSL’s independence suffered as a result of this culture, Bhattacharya didn’t want to answer the question. He had told me several times during the conversation that he was only filling in as director till someone was appointed permanently. He looked away again, and said, ‘You could say there is a parallel administration.’

Our conversation ended with Bhattacharya passing on instructions to one of his staff—a North Indian lady called Babita—in Bengali, about work that had been left pending. He was heading out of office and relished the prospect: ‘How many cups of black tea can you have?’

His ‘Mrs’ hadn’t yet arrived in Delhi, and he was living on a camp cot, he told me. But with incredible warmth, he also asked if I would join him for dinner in his quarters—of a simple Bengali meal of mashed boiled eggs and potatoes, with rice—just to do ‘adda’, whenever I found the time.

Neeraj Kumar, a former CBI officer who headed its Special Task Force probing the 1993 Mumbai blasts and later became the Delhi police commissioner, told me about two cases in which a well-known scientist was suspected of corruption because he gave findings that completely undid what were, by all accounts, open-and-shut cases. In his view, this corruption among some scientists provided the CBI extra leverage over the CFSL when required.

The CBI investigates a case, collects evidence. It then takes this to a lab under its control for analysis by scientists who are aware of their subordinate status, even if this isn’t official. There is no separation between investigation and prosecution, so the agency has its own counsel, who then briefs the scientists on what they should say. The testimonies and arguments take place in a designated CBI court, like the one in Ghaziabad.

***

At the tea stall, under the sheesham tree or in the squalid lanes that connected everything in the Ghaziabad court, there was one topic of conversation that reared up as a refrain. This was about how the Talwars managed to pay their bills.

The Talwars’ financial means found its way into Judge Shyam Lal’s court through an application filed by them in early November 2012. The defence counsel pleaded that the accused, Drs Rajesh and Nupur Talwar, needed to earn their living in order to mount their defence. Unpredictable court dates—each date consumed a full day—did not leave room for them to pursue their vocation to earn the money they required for sustenance. For once, the court ordered in favour of the defendants. It would hear the matter twice a week, on Tuesdays and Wednesdays, rather than at random.

Starting at the top, the Supreme Court, where Nupur Talwar was granted bail in September, there was a distinguished law firm—Karanjawala and Co., run by the socially connected Raian Karanjawala—and a set of redoubtable (and very expensive) lawyers who appeared on the Talwars’ behalf. Among them were the former solicitor general Harish Salve, future attorney general of India Mukul Rohatgi, former additional solicitor general K.V. Vishwanathan and Rebecca John, a prominent criminal lawyer.

Lawyers’ fees in the Supreme Court can be bizarre: Rs 10 lakh to Rs 15 lakh per appearance is the norm at the very top. Subrata Roy, India’s chit fund king, for instance, might well have to write off a hotel or two to pay his Supreme Court lawyers as he tries to accumulate the thousands of crores he is required to deposit to get out of the cooler. The thing about the Aarushi case, however, was that some top lawyers chose to do it for free.

Rebecca John told me she was moved and convinced by the Talwars’ story. Connections within the family led them to Salve. Salve was unaffordable, but he agreed with a nod (rather than the theatrical bow he reserves for the Supreme Court) and no money. Not everyone was free, however. But not everyone operated by card rates either. I happened to overhear a brief negotiation (the boss lawyer is never involved in these, it’s the job of his assistants) where a fee of just under Rs 3.5 lakh was agreed upon for one appearance by a prominent Supreme Court lawyer, substantially less than ‘card’.

In the lower courts, the financial arrangements were different. Here, livings had to be earned in the present continuous. In the Allahabad High Court, where the Talwars went first, they spent about Rs 1 lakh in fees each time they litigated.

In Ghaziabad, a set of four lawyers usually appeared on their behalf. All of them honest, committed professionals who knew the system and were also trying to make a living. The two people who featured through the trial were Manoj Sisodia, an amiable man whose tiny office was the hub of everything the defence did—including press briefings—and Satyaketu Singh, whose 10 foot by 10 foot space was down the same lane.

From what I gathered, the Ghaziabad lawyers were paid on a retainer basis and, with additional costs, the Talwars were spending anywhere between Rs 50,000 and a lakh a month. This, of course, didn’t include the fees of their criminal lawyer Tanveer Ahmed Mir who would come to the case a few months after the trial had begun.

Where did they get the money from? Rajesh Talwar said he and Nupur—just out on bail—were grateful for patients who were still loyal to them. Their consultation fee was Rs 500, but, as anyone who’s been to a dentist knows, the costs of dental work can add up. The earnings from his clinic covered living expenses, Rajesh told me. I visited the Hauz Khas clinic a few times, and found the place slightly derelict and in disrepair. A neglected aquarium held a few fish struggling to survive—but what else would you expect given their situation?

The Jalvayu Vihar flat, where they lost what was most precious to them, continued to give them a rental return in the region of Rs 20,000 a month. They later also rented out the Hauz Khas clinic, and these rents covered the salaries of employees like their driver Umesh and Rajesh Talwar’s man Friday, Vikas Sethi.

That still left a substantial shortfall. Rajesh said that he was grateful to ‘friends and family’ for financial support. One friend based abroad sent him a large sum of money at the beginning of the trial, and had promised to wire more. The Talwars had also sold their clinic in Noida to a member of the family for around Rs 70 lakh, and this helped them stay afloat. Additionally, the savings of Dinesh and Vandana Talwar were also almost depleted by the Talwars’ legal costs.

Tanveer Ahmed Mir had advised his clients to go even further: sell their properties. He believed that it was the only chance they had. This wasn’t greedy lawyerspeak. Mir believed that lawyers worked best if you paid them.

Pro bono work, noble as it is, has direct disadvantages for the client—especially in a case like the Talwars’. Lawyers who offer their time and energy for this kind of work usually do it for issues of wide public interest, say, high-level corruption or big environment cases. The defence of the Talwars in the mysterious murders of their daughter and servant didn’t fit the standard definition of ‘public interest’. It appeared more to be a case of something the
public was interested in
.

When the public interest aspect is overshadowed by ‘personal tragedy’, pro bono work is of a different nature—it becomes, without being overly cynical, about favours to individuals in need. The contract that binds the paid-for lawyer to his client isn’t there, and even if the lawyer’s conscience urges him to help, he might find that his time has already been paid for by others who require his services.

The question of availability of someone like Harish Salve came up several times in Supreme Court matters. The Talwars either waited for a window or paid for a replacement. Although the latter meant spending money, the former—working dates in sync with their ace’s schedule—may well have been more costly. The CBI inevitably brought the charge that the Talwars were deliberately delaying things, to the point that it was about the only thing the Supreme Court heard.

***

Events over the months of July, August and September illustrated how multilayered a murder trial can be. The Talwars were fighting their case at three different courts—the trial court, the Allahabad High Court and the Supreme Court. The most pressing case in the Supreme Court was getting bail for Nupur. The CBI, however, wanted Rajesh back in jail and had moved the Allahabad High Court. The two pleas mirrored each other. Nupur pleaded that she should be granted bail because she had been charged with the same offences as Rajesh, and he was free. The CBI argued that Nupur had been sent to custody, so why shouldn’t Rajesh be treated the same way?

The CBI told the Supreme Court that Nupur Talwar was likely to influence witnesses if she was let out of jail. The court asked for a list of those the agency felt were vulnerable, and 13 names were provided. It then directed that the testimonies of these 13 be recorded expeditiously over the following month.

This was a stiff target given Mohapatra’s lengthy and complicated testimony. The defence needed a lot more time to deal with Mohapatra and the 13 additional witnesses. Completing this before the Supreme Court’s 17 September deadline seemed near impossible.

There were other things to contend with, like strikes, or forced holidays on occasions like Valmiki Jayanti. Caste is a big factor in the Ghaziabad bar elections, and the lower castes are a sizeable constituency. Gender is a big factor too; the bar shut the court down for Karva Chauth so that its female members were not inconvenienced. Also, there seemed to be an unfortunate pattern: on an average two lawyers seemed to depart the Ghaziabad bar forever each month and the court could not be allowed to function during ‘condolence’.

The defence had other troubles as well. It needed the expertise of its counsel G.P. Thareja, a lawyer who understood forensics, for Mohapatra’s cross-examination. Thareja, a former judge, was a grandfatherly figure who would arrive in court drenched in sweat from his assignments in Delhi, slip on a pair of sandals and begin work. (The judge couldn’t see his footwear under his robe.) Thareja worked closely with Dinesh Talwar, and seemed to have a genuine affection for Nupur, whom he addressed as ‘beti’, as he drew her aside to speak to her in what privacy the court allowed. He was doing the case pro bono, but was available only on two days of the week.

This created a peculiar situation in court. As the trial judge urged its lawyers to begin cross-examination, the defence filed an application saying they were not competent to conduct it without Thareja. Mohapatra, in a sharp blue shirt, his bag of papers on the table in front of him, kept waiting.

Keeping the Supreme Court deadline in mind, the defence moved another application pleading the forensics man’s cross-examination—a crucial piece in the case, but bound to be lengthy—be taken up after the trial court was done with the 13 witnesses named by the CBI. Judge Shyam Lal rejected this application.

The defence put up the application once again, this time in greater detail. It said Mohapatra’s cross-examination would take at least six or seven court dates and that the Talwars had just one lawyer competent to conduct it. Also, the volume of material to be gone through was massive. Thareja had to be given a fair amount of time to prepare.

The CBI replied that repeated applications were being filed ‘just to delay the trial’. Commenting on the fact that the defence had kept a witness waiting for a whole day, the trial judge issued a terse directive. He said ‘in the interest of justice’ he was giving the Talwars one ‘last opportunity’ to cross-examine the witness on 21 August.

There seemed to be a distinct bias against the defence team. They would, for example, never be given any indication as to which prosecution witness would appear at the next hearing and then be expected to cross-examine them the day they appeared. Frustrated by the daily surprises being sprung on them, the Talwars pleaded with the court several times to direct the prosecution to let them know which witness was being called on the next date. Giving the other side this information isn’t just a matter of form, they argued, it impacted preparation for cross-examination. The prosecution never did this—even via a telephone call.

In late July, the court directed the CBI to give the defence adequate notice. This was to no avail: the defence was never given the names of the witnesses, and almost every hearing would begin with the same recriminations.

The witnesses could not just come on their own, so how were they appearing? The answer to this was in a set of certified copies of summons issued by the court to these witnesses. The forms contained the name of the witness and the date on which he/she needed to appear. Sometimes the forms were ready days in advance. This meant the prosecution knew who would appear. The judge signed the summons, so the court knew as well. The only party left in the dark was the defence. That’s how it worked.